In Part 1 of this series I introduced the developing story of UnitedHealth Group, Inc. vs. the United States of America, and my intent to write a series of articles on this civil fraud action. Why? Because I find this to be an incredibly interesting case with broad ramifications for CDI and coding departments.

So let’s review the basic at the facts of the case, starting with the who and when.

The suit concerns a civil fraud auction brought by the United States of America, as represented by the Department of Justice(DOJ), to recover damages and civil penalties under the False Claims Act (FCA). Under the FCA, the government is entitled to recover three times the amount of damages which it sustained because of a defendant’s violation of the statute and, for each act by the defendant violating the statute, a civil penalty. A defendant violates the FCA when it “knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval.” 31 U.S.C. § 3729(a)(1)(A).

The key here is “knowingly.”

The suit is against defendant UnitedHealth Group Inc. (UHG) and various of its subsidiaries involved in the Medicare Advantage (MA) program. According to the DOJ, UHG is the nation’s largest MA organization, with more than 50 MA and drug prescription plans providing healthcare services and prescription drug benefits to millions of Medicare beneficiaries across the country. All MA organizations and MA plans acquired, owned, and controlled by UHG after 2005 are listed as defendants in this action.

The case is the result of a qui tam provision of the FCA, meaning that it was brought forward by a whistleblower within UHG. The initial qui tam plaintiff is Benjamin Poehling, the former director of finance for UnitedHealthcare Medicare & Retirement (and its predecessor Ovations), which was the group at UHG that managed its MA plans and its Medicare Part D Prescription Drug Programs. James Swoben, a former employee of the Senior Care Action Network Health Plan and a consultant to the risk adjustment industry, filed a similar complaint in March.

The DOJ followed with two complaints in May 2017.

Now let’s take a look at what the United States alleges. The following is taken from the Poehling complaint.

“The complaint alleges that UHG knowingly disregarded information about beneficiaries’ medical conditions, which increased the payments UHG received from Medicare. In particular, the lawsuit contends that UHG funded chart reviews conducted by HealthCare Partners (HCP), one of the largest providers of services to UHG beneficiaries in California, to increase the risk adjustment payments received from the Medicare program for beneficiaries under HCP’s care. According to the case laid forth by the DOJ, UHG allegedly ignored information from these chart reviews about invalid diagnoses, and thus avoided repaying Medicare monies to which it was not entitled.”

The complaint states the U.S. government has always required that submitted diagnoses be supported and validated by the documentation contained in the beneficiary’s medical records. From the complaint:

“In order to combat these incentives and protect the government from making erroneous payments to MA organizations, the government requires that submitted diagnoses be supported and validated by the beneficiaries’ medical records. It is a well-established requirement that all diagnosis codes submitted to the Medicare Program for risk adjustment payments must be unambiguously supported by information included in the beneficiaries’ medical records.”

The complaint also states that, to ensure submitted diagnosis codes are accurate and truthful, Medicare Advantage organizations must also adopt and implement a compliance plan:

“In addition, each MA organization must expressly certify that the diagnosis codes it has provided are accurate and truthful. 42 C.F.R. § 422.504(l)(2). Each MA organization must also ‘[a]dopt and implement an effective compliance program, which must include measures that prevent, detect, and correct non-compliance with [the government’s] program requirements as well as measures that prevent, detect, and correct fraud, waste, and abuse.’” 42 C.F.R. § 422.503(b)(4)(vi).

The complaint alleges that UHG failed to meet these two standards. It states that UGH’s submitted diagnoses not supported or validated by the documentation in the chart, and in fact were not even contained in the providers’ own claims. Again from the complaint:

“During the last 10 years, United increased the amount of risk adjustment payments that it received from the Medicare Program by collecting millions of medical records (also known as charts) from providers and then employing diagnosis coders (also known as chart reviewers) to review the medical records in order to mine for diagnosesthat the providers themselves did not report to United for their patients in United’s MA Plans. United then submitted these additional diagnosis codes (ADDS) to the Medicare Program for billions of dollars of additional risk adjustment payments. United’s national Chart Review Program was strictly a one-sided revenue-generating program. United did not review the beneficiaries’ medical records in good faith in order to obtain a true and accurate picture of the health status of the beneficiaries in its MA plans or to submit truthful and accurate risk adjustment data to the government.” (Emphasis added.)

My takeaway: That bit in bold indicates that the charts should be reviewed (in good faith) in order to obtain a true and accurate picture, and submit truthful and accurate data. Who better to conduct the review than a CDI specialist and/or an HIM/coding professional?

Again from the complaint:

“United used the results of the chart reviews to only increase government payments (i.e., submit additional codes not reported by the providers) while in bad faith systemically ignoring other information from the chart reviews which would have led to decreased payments (i.e., information about diagnoses reported by providers to United and then submitted by United to Medicare which were not supported and validated by the medical records).”

My takeaway: If a patient’s diagnosis is resolved or is inactive/no longer being treated, it should not be reported. Or if there is evidence it has resolved, a CDI specialist should query to have it removed.

One more critical line to share from the complaint:

“By failing to ‘look both ways,’ United violated the FCA.”

My takeaway: This line implies there is nothing wrong with reviewing charts for missed opportunities to report diagnoses, and querying physicians to determine if they still exist and are still being monitored/treated/evaluated/assessed. One way to “look” is for opportunity. Over the years I have detected some level of unease with the CDI profession in some quarters of the healthcare industry, with some claiming that is merely a revenue-generating scheme. But that ignores CMS’ own statement in the 2008 IPPS final rule which states:

“We do not believe there is anything inappropriate, unethical, or otherwise wrong with hospitals taking full advantage of coding opportunities to maximize Medicare payment as long as the coding is fully and properly supported by documentation in the medical record.”

This statement does not excuse inaccurate claims submission, or turning the other way when confronted with a shaky, unsubstantiated diagnosis. The other way to “look” is for compliance. CDI specialists must also ensure the accuracy and validity of diagnoses reported to Medicare (and other payers) by securing adequate supporting documentation. Part of this process should include a careful review of the emergency room encounter, history and physical, progress notes, and discharge summary, and promoting concise, accurate, and complete documentation throughout the chart.

CDI specialists and HIM/coding professionals need to be “looking both ways.” It’s not enough to “let slide” vulnerable diagnoses that were perhaps reported last year and lack evidence of still being an active condition, and ask the doctor to re-document them. CDI staff, in conjunction with a well-supported clinical validation team of HIM/coding professionals, physicians, and ancillary staff, need to do the work of verifying and validating diagnoses and ensuring that they are supported with documentation in the record. This ensures that MA organizations, hospitals, and other entities submitted claims to Medicare are “looking both ways” and performing their work in a compliant manner.

There are many other interesting observations and allegations in the case, including the DOJ’s observation that UHG agreements with gainsharing and with capitated providers “incentivized these providers to increase the number of diagnoses that they reported to UHG and to report diagnoses for more severe medical conditions.” There is also a gold mine of information for those interested in learning more about the specifics of the FCA. But for the purposes of this series of articles, I am focusing only on processes related to claims submission.

Final takeaways

Diagnoses need to be supported and validated in the medical record in order to be reported to Medicare, not just re-documented by the physician. It is not enough for physicians to document a diagnosis; reporting diagnoses (via ICD-10-CM or other codes) without clinical support, and without a process to ensure they meet UHDDS criteria and adhere to the Official Guidelines for Coding and Reporting, can result in recoupment and possible False Claims Action. This pertains to all coded data including procedures.

MA organizations need a compliance program in place. The same principle can be safely extended to all hospitals submitting claims to Medicare.

Editor’s note: To read the summary of the case, visit the DOJ website by clicking here. To read the court document in its entirety, click here. To read part one of this series, click here. Brian Murphy is Director of the Association of Clinical Documentation Improvement Specialists (ACDIS). He can be reached at bmurphy@acdis.org.

About the Author: Linnea Archibald is the CDI editor for the Association of Clinical Documentation Improvement Specialists (ACDIS). In this role, she helps out with the website, blog, social media, newsletter, and the CDI Journal. If you have any questions, feel free to email her.